Supreme Court sets aside Calcutta HC’s complete ban on firecrackers in Bengal
The Supreme Court on Monday set aside the Calcutta high court order imposing a complete ban on sale and use of all firecrackers in the state, ruling that the high court departed from the legal regime established under the top court’s orders without any material to show inaction on part of the state or collusive approach by the authorities at the ground level.
“We are convinced that if the high court wanted to impose complete ban, it should have asked the authorities to offer an explanation requiring such an extreme order and departing from the order passed by this court on October 29,” the bench of justices AM Khanwilkar and Ajay Rastogi observed at a special sitting to hear this case as the courts have closed for Diwali vacation.
On October 29, the Calcutta high court held that it found no evidence to establish that there was a mechanism to ascertain that only green crackers were being sold or burst, and went ahead to prohibit the sale of even green crackers ahead of the festive month beginning with Kali Puja, Diwali, Chhatt Puja, Jagadhatri Puja, Guru Nanak’s Birthday and extending till Christmas and New Year celebrations.
The high court verdict came on the same day the Supreme Court ordered states and Union territories to comply with its order prohibiting the sale of banned firecrackers but made it clear that there was no blanket firecracker ban, because green crackers can be used during the festival.
Two fireworks dealers’ association, Burrabazaar Fireworks Dealers’ Association and Siliguri Fireworks Dealers Association, rushed to the Supreme Court against the high court ban, pleading that they have already received their stocks from Sivakasi in Tamil Nadu and the last-minute ban jeopardised their interests ahead of the festival season.
The dealers represented by senior advocates Siddharth Bhatnagar and Malvika Trivedi recalled the top court’s direction on Friday, laying down clearly that there is no complete ban on firecrackers and use of green crackers and improved crackers (with reduced emission) are permitted.
The bench agreed. “All states are following the order passed by this court. How can West Bengal be an exception? Our order has to be consistent in all areas unless as a matter of policy, any state decides to impose a ban (on sale or use of firecrackers),” it said.
To be sure, a blanket ban on all types of firecrackers including the ‘green’ ones is in place in Delhi where the prohibition is effective till January 1 next year in view of the worsening air pollution. The Odisha government earlier banned firecrackers in the interest of protecting general public health but on Monday, the Odisha high court allowed green crackers to be sold ahead of Diwali but has stipulated that these should only be burnt between 8pm and 10 pm.
Senior advocate Anand Grover appearing for West Bengal government told the court that the state government was also taken by surprise by the high court ruling. “The order came as a bolt from the blue as the high court never discussed it when the PIL was heard and suddenly made it part of the order,” Grover said.
He also produced figures indicating that last year, over 100 First Information Reports (FIRs) were registered against people found selling illegal crackers in Kolkata resulting in the arrest of 243 persons. Similar figures were provided for the years 2018 and 2019 as well. This year too, 10 persons were arrested in connection with seven FIRs, Grover stated.
Lawyer Rachit Lakhmani, appearing for Roshni Ali who petitioned the high court for a ban, told the Supreme Court that crackers are being burst near hospitals and prescribed silence zones in violation of the Supreme Court’s repeated directions to states to have community cracker bursting at designated places.
The bench said, “There may be people of all kinds but that does not mean there should be a complete ban. Instead, the mechanism has to be strengthened to prevent abuse of our orders. The high court has not defined what the practical realities are to pass such an extreme order. Even the state did not have the opportunity to present facts.”
The bench said that over the years, the top court specified the legal regime regarding ban on fireworks and to depart from that regime, there must be some material to show inaction on part of the state or collusive approach by police and officials at the ground level.
The top court accepted the assurance given by the state that in the event of any inaction on part of its officials to curb illicit fireworks, “appropriate remedial and corrective steps will be taken.”
Senior advocate Gopal Shankarnaraynan, who last week argued for a blanket ban on firecrackers, said the top court’s October 29 order was passed in the context of manufacturers while the present petition concerned dealers. He reiterated that most firecrackers produced in Sivakasi were mislabeled ‘green crackers’ with fake QR codes as they contained the chemicals including barium salts already banned by the Supreme Court in October 2018.
“The same logic laid down by this court on October 29 for manufacturers shall apply to traders,” the bench said asking the state to abide by the top court’s order. Adding further, it said, “West Bengal government may explore the possibility of ensuring no banned fireworks or related items are imported within the state and be verified at the entry point itself. This mechanism can be strengthened in addition to the strict supervision and verification at other places where trading or utilization of such fireworks takes place.”
The bench said the petitioner or any person was free to place all relevant documents before the high court, “which after giving opportunity of hearing to the WB government and WB Pollution Control Board may proceed to pass orders as may be advised.”